Citation Nr: 0924725
Decision Date: 07/01/09 Archive Date: 07/14/09
DOCKET NO. 05-00 402A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to an increased rating for status post right
total hip replacement for aseptic necrosis, currently
evaluated as 30 percent disabling.
2. Entitlement to service connection for right knee
condition, to include as secondary to the service-connected
right hip disability.
3. Entitlement to service connection for right foot
condition, to include as secondary to the service-connected
right hip disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. A. Jonas, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1977 to July 1978.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from rating decisions by the Department of Veterans
Affairs (VA) Regional Office (RO) in Hartford, Connecticut.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Veteran is currently incarcerated. The United States
Court of Appeals for Veterans Claims (Court) has cautioned
"those who adjudicate claims of incarcerated veterans to be
certain that they tailor their assistance to the peculiar
circumstances of confinement. Such individuals are entitled
to the same care and consideration given to their fellow
veterans." Bolton v. Brown, 8 Vet. App. 185, 191 (1995)
(citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). In
Bolton, the Court remanded a case where the RO claimed an
inability to get a fee-basis physician to conduct an
examination at a correctional facility. In that case,
further efforts were deemed necessary to attempt to examine
the veteran. Id.
The VA Adjudication Procedure Manual contains a provision for
scheduling examinations of incarcerated veterans. The manual
calls for the AOJ or the local Veterans Health Administration
(VHA) Medical Examination Coordinator to confer with prison
authorities to determine whether the veteran should be
escorted to a VA medical facility for examination by VHA
personnel. If that is not possible, the veteran may be
examined at the prison by: (1) VHA personnel; (2) prison
medical providers at VA expense; or (3) fee-basis providers
contracted by VHA. See M21-1MR, Part III.iv.3.A.11.d (2008).
Here, the RO scheduled a VA examination in October 2008 to
determine the current severity of the Veteran's right hip
disability. The last VA examination was conducted in January
2004, prior to the hip replacement surgery. In May 2009, the
VA examiner gave an account of her efforts to arrange the VA
examination. She spoke to a registered nurse at the
correctional institution (CI). The nurse told her that the
CI's physician refused to conduct an examination due to time
constraints. Secondly, the Veteran would not be allowed to
leave the CI for an examination. The VA examiner can conduct
the examination at the CI if she gets the necessary
permission, which is contingent on a screening process. The
VA examiner stated her willingness to undergo the screening
process. The RO then certified the case to the Board without
any further action. A reasonable effort should be made to
conduct an examination at the CI.
If conducted, the VA examination should also address the
service connection claims of the right knee and right foot.
A medical examination or medical opinion is necessary if the
information and evidence of record does not contain
sufficient competent medical evidence to decide the claim,
but: (A) Contains competent lay or medical evidence of a
current diagnosed disability or persistent or recurrent
symptoms of disability; (B) Establishes that the veteran
suffered an event, injury or disease in service, or has a
disease or symptoms of a disease listed in 38 C.F.R.
§§ 3.309, 3.313, 3.316, and 3.317 manifesting during an
applicable presumptive period provided the claimant has the
required service or triggering event to qualify for that
presumption; and (C) Indicates that the claimed disability or
symptoms may be associated with the established event,
injury, or disease in service or with another service-
connected disability. This requirement could be satisfied by
competent evidence showing post-service treatment for a
condition, or other possible association with military
service. 38 C.F.R. § 3.159(c)(4).
In this case, there is no competent medical evidence showing
a relationship between injuries in service and the current
knee and foot conditions or the service-connected hip
disability. There is evidence of a pre-service lower
extremity injury in 1975. There is also a post-service
fracture of the right tibia and fibula resulting from a
motorcycle accident in 1999. During service, there was a
minor knee injury in training. The February 1978 separation
examination notes a healed laceration of the right knee. VA
treatment records show current diagnoses of right knee and
foot conditions, attributing them to the non-service related
injuries. However, a VA examination should be conducted to
determine, at the very least, whether the service-connected
right hip disability is aggravating the right knee and foot.
The appellant is hereby notified that it is the appellant's
responsibility to report for the examination and to cooperate
in the development of the case, and that the consequences of
failure to report for a VA examination without good cause may
include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655
(2008).
Accordingly, the case is REMANDED for the following action:
1. Make a reasonable attempt to comply
with the CI's screening process so that a
VA examiner may conduct an examination of
the Veteran at the CI.
2. If the CI approves, schedule the
Veteran for a VA examination of his right
hip, right knee, and right foot. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination.
Determine the nature and severity of the
Veteran's right hip disability. All
indicated studies should be performed, and
all findings should be reported in detail.
Examine the Veteran's right knee and right
foot to ascertain the nature and etiology
of his symptoms. All indicated studies
should be performed, and all findings
should be reported in detail. If a
diagnosis is made, the examiner is
requested to offer an opinion as to
whether it is at least as likely as not
(i.e., probability of 50 percent or
greater) that the right knee and/or right
foot condition is the result of an injury
in service or has been caused or
aggravated by the service-connected right
hip disability. The examiner should
provide a complete rationale for each
opinion.
3. Readjudicate the issues on appeal in
light of all of the evidence of record.
If the benefits are not granted, furnish
the Veteran and his representative with a
supplemental statement of the case and
afford an opportunity to respond before
returning the record to the Board for
future review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).